State Of Louisiana VS Regan M. Tingle
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT NO 2012 KA 1928 STATE OF LOUISIANA VERSUS REGAN M TINGLE JudgmentRendered UN 7 2013 r On Appeal from the 22 Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court No 489952 2H G9 The Honorable Allison M Penzato Judge Presiding Walter P Reed DA Covington Louisiana Attorneys for Plaintiff Appellee State of Louisiana and Kathryn W Landry Baton Rouge Louisiana Shawn Sirgo Nashville Tennessee BEFORE Attorney for DefendanUAppellant Regan M Tingle GLTIDRY CRAIN AND THERIOT JJ CRAIN J The defendant Regan M Tingle pled gurlty to armed robbery and production or manufacture of marijuana She was ardere to serve concurrent i thirty year armed robbery and ten year production or manufacture of marijuana hard labor sentences She filed a motion to set aside her guilty pleas and to dismiss the prosecution The trial court denied the motion We affirm PROCEDURAL BACKGROUND The defendant and four co were charged by bill of information defendants with armed robbery a violation of Louisiana Revised Statute 64 14 The defendant initially pled not guilty however on April 11 20ll she withdrew her not guilty plea and pled guilty to armed robbery and production or manufacture of marijuana a violation of Louisiana Revised Statute 1 966A 40 She was sentenced to thirty years at hard labor without benefit of parole probation or suspension of sentence for armed robbery and ten years at hard labor for the production or manufacture of marijuana with the sentences to run concurrently On March 28 2012 the defendant filed a pleading titled Defendant s Motion To Set Aside Plea And Dismiss The Prosecution seeking to set aside her guilry plea The motion was summarily denied on April 2 2012 On July 23 2012 the defendant filed a notice of appeal fro the Apri12 2012 denial On the n same date the trial court denied the appeal as untimely On September 4 2012 the defendant filed a Notice of Appeal relative to the same April 2 Renewed 2012 denial The trial court granted the a peal 1 The drug chazge was filed in Twenty Judicial District Court docket number 489953 Second and was not included in this appeal record which contains only docket number 489952 2 Nevertheless the Boykin transcript and minutes in this appeal record reveal the defendant pled guilty to both the armed robbery and drug chazges and was sentenced on both convictions 2 FACTS Because the defendant pled guilty the facts were not fully developed at a trial The factual basis for the guzlty pleas as derived from the Boykin transcript and the bill of information is that the defendant articipated in an armed robbery on April 25 2010 tha involysd the use of a sawed shotgun and produced or f o manufactured marijuana TIMELINENESS fJF APPEAL The State contends that this appeal is untimely and should be dismissed The motion for appeal was filed beyond the thirty day delay provided for in Louisiana Code of Criminal Procedure article 914B and to the extent the motion was considered an application for post relief the conviction procedural requirements for granting a post relief application were not followed conviction See La Code of Crim Pro arts 927 930 State v Counterman 475 So 2d 336 339 La 1985 However the State failed to seek review ofthat ruling in a timely manner and objected to the timeliness of the appeal for the first time in its brief to this court Under these circumstances we find that the State is precluded from objecting to the grant of the defendant ofappeal See State v George sout time 959 39 La App 2 Cir 10 914 So 588 591 writ denied 06 La OS 25 2d 0707 06 6 10 938 So 2d 66 State v Charles 02 La App 3 Cir 10 827 0443 02 2 So 2d 553 559 writ denied 02 La 3 840 So 2d 569 2707 03 28 DISCUSSION In three related assignments of error the defendant argues that her plea agreement was not entered freely and voluntarily the trial court erred when it accepted the plea agreement ar the defendant did not have effective assistance of d counsel The essence of the defendant argument in support of all three s assignments is that her guilty plea should be withdrawn because it was 3 constitutionally infirm In addition to these assigned errors the defendant argues that her sentence was excessive Assignment of Error Nos 1 and 2 Voluntariness of Pleas and Acceptance by Trial Court A guilty plea is a conviction and therefore should be afforded a great measure of finality State v Thornton 521 So 2d 598 600 La App 1 Cir writ denied 530 So 2d 85 La 1988 A trial court may permit the withdrawal of a guilty plea at any time before sentencing La Code Crim Pro art 559A A trial court may permit the withdrawal of a guilty plea after sentencing only if it finds that the guilty plea is constitutionally infirm State v Bell 00 La App 1084 5 Cir 2 781 So 2d 843 847 writ denied 01 La 4 813 So O1 28 0776 02 26 2d 1098 A guilty plea is constitutionally infirm if it was not entered freely and voluntarily if the Boykin colloquy is inadequate or if the defendant was induced to plead guilty by a plea bargain that was not kept State v Lewis 421 So 2d 224 226 La 1982 State v Hayes 423 So 2d 1111 1114 La 1982 The court s decision whether or not to set aside a guilty plea is discretionary and subject to reversal only if that discretion is abused or arbitrarily exercised State v Lewis 633 So 2d 315 317 La App 1 Cir 1993 Under Boykin v Alabama 395 U 238 1969 before accepting a guilty S plea a trial court must ascertain that the defendant has knowingly and voluntarily waived his rights against self to a jury trial and to confrontation incrimination State v Fields 95 La App 1 Cir 12 686 So 2d 107 109 2481 96 20 The transcript of the defendant Boykin examination shows and the s defendant does not contest that the trial court thoroughly informed her of her constitutional rights and the consequences of waiving those rights At the time of the plea the defendant stated that she dropped out of school in the twelfth grade but obtained her GED and that she was not under the influence of drugs alcohol a or other mind altering substances The trial court then informed the defendant of the elements of each charged crime and the penalties for a conviction of those crimes specifically that an armed robbery conviction carried a possible sentence of not less than ten years nor more than ninety years without benefit of nine parole probation ar suspension of sentence and that production or manufacture of marijuana carried a possible sentence of not less than five years nor more than thirty years The defendant acknowledged her understanding of the charges The trial court informed the defendant that she had the right to hire a lawyer of her choice or have an attorney appointed free of charge that she had the right to a trial with or without a jury that she had the right to confront ar cross examine witnesses that the State had to prove she committed the charged crimes beyond a reasonable doubt that she could subpoena witnesses that she could invoke her right against self incrimination and remain silent and that if convicted at trial she had the right to appeal her conviction with the assistance of a paid or appointed attorney The defendant acknowledged her understanding of those rights and that she was waiving them by pleading guilty The Boykin transcript also shows and the defendant does not contest that her plea was the result of a plea bargain that has been kept The trial court expressed its understanding that the defendant willingness to plead guilty s resulted from a plea agreement and that the substance of the agreement would be disclosed when she was sentenced The trial court instructed the defendant that if the sentence was not in accordance with the defendant understanding then she s could withdraw the guilty plea at that time When asked if she understood the defendant replied Yes ma am The trial court then asked if the defendant was satisfied with her lawyer swork to which she replied Yes I am When asked if her lawyer explained her rights to her she answered Yes he has After the State and defense counsel stipulated to a factual basis for the plea the trial court s imposed the sentences of thirty years for armed robbery and ten years for production and manufacture of marijuana and ordered that they run concurrently The trial court then asked the defendant if those sentences conformed to her plea agreement and she answered Yes ma Upon this record we find that the am Boykin colloquy was exceptionally thorough and complete and that the sentences complied with the defendant plea agreement s Nearly one year after they were entered the defendant filed a motion to withdraw her guilty pleas and for the first time asserted that her pleas were not knowing and voluntary In her motion and now on appeal she contends that she was not informed of the consequences of the pleas and was forced to enter the plea agreement because the trial court threatened a longer sentence if she was convicted at trial The defendant claims that her trial counsel informed her that the trial judge required her to accept a plea agreement for a thirty year sentence or if she refused and went to trial she would be sentenced to forty years and the sentence for nine the drug offense would not run concurrently Attached to the defendant motion presented to the trial court were the s following documents Exhibit 1 Extract of court minutes from the April 11 2011 guilty plea Eachibit 2 Email from Robert Stern to post counsel conviction Shawn P Sirgo dated September 26 2011 Exhibit 3 Affidavit of Regan Tingle Affidavit of Devyn Michael Rome and Affidavit of Jeward Miller Exhibit 4 Affidavit of Allen Tingle and Copy of State v Bienvenu 11 La App 3d Cir 11 491 11 2 unpublished 2011 WL 5241147 The record was supplemented on April 5 2012 with the Affidavit of Bryant Murray 6 Although filed into the recnrd these documents were never admitted in evidence because the trial court summarily denied the defendant motion s An evidentiary hearing on a motion to withdraw a guilty plea may be held but is not required See State v Hipps 06 La App 1 Car 3 unpublished 17R5 07 23 2007 WL 866338 State v Letivis E3 a 2d 318 La App 1 Cir 1993 However ha considered the substance c t1n documents we find that they do ing f not support defendant claim that her plea should be set aside s See State v Green 94 La App 3 Cir 12 647 So 2d 536 540 617 94 7 The affidavits of Rome Miller and Murray express no knowledge oi the s defendant plea process The affidavit of the defendant father Allen Tingle s offers no personal knowledge of facts that support the defendant assertion that s her plea was not knowing and voluntary His affidavit consists mostly of criticisms of trial counsel handling of the case s Tingle also attested that trial counsel informed him that the trial judge was offering a thirty year sentence at five eighty percent that would increase to forty years if not accepted nine According to Tingle trial counsel told him that if he objected to the sentence he would make the judge angry and couid be held in contempt Tingle attested that he was encouraged to come to court and talk l daughter into accepting the plea is Relative to the plea bargain process itself tihe affidavit is not based on personal knowledge of any relevant facts and contains speculation and conclusory statements none of which support the claim of a constitutionally infirm plea by the defendant In the defendant affidavit she states that she was advised by her trial s counsel that the trial judge told him that the defendant F take the 30 years or either she goes to trial and I will sentence her to 49 years Accarding to the defendant she asked trial counsel if she could tell the judge that she was threaten dby her and was told nr The defendant also claims that she believed she could get away from thxs judge and corr ha and fight it if she pied uilty The defendant ek attested that the only reason she pled guilty was because her trial counsel told her that the judge dem that I serve 30 year cr she would punish me for not anded accepting the ple The only rsr ac oz a t twe hand u t nspire e xL nth defenc3an trial s counsel and the triai court during ehe defendanl sple ocess is he September 26 2011 email from trial counsel to appellate counsel that was attached to the motion That account of the interactions between the court defense counsel and the district s attorney office reflect the plea process First a meeting between defense counsel and the district attorney was held that was unsuccessful in obtaining leniency relative to the prosecution Then efforts were made by defense counsel to obtain mitigation information for the court to consider in plea discussions After available information about the crimes and the defendant commission of them was s gathered Che trial court gave a recommended sentence if the defeadant pled guilty The defendant was then faced with the unpleasant reality of accepting the plea agreement or going to trial and risking a greater s she was convicted eif nYen A trial commonly produces more detailed inforrnation about the commission of the crimes than is presented during plea negotiations Consequently a risk of proceeding to trial is the possible imposition of a longer sentence after a trial Courts have consistently recognized that when a defendant chooses not to accept the plea bargains offered by the State she takes 2he risk of a greater penalty upon a jury conviction See State v aouglas 10 L App 1 Cir 7 72 So 2039 a 11 26 3d 392 402 writs denied 11 La 5 90 o 3d 406 and 12 La 2307 25112 2508 13 3 5 So 3d State v Lewis 39 La App 2 C 1 892 So 263 r 2fi OS 2d 702 710 State v Johfa 11 La App S Cir 12 3 So 3a 1116 ron 375 28i11 1123 writ denied 12 La 6 91 Soo 3d 966 0296 12 22 s In State v Fortino 02 La App 5 Cir 12 837 So 2d 684 the 708 02 30 defendant argued that the trial court penalized him with an excessive sentence for opting to go to trial rather than entering a plea agreement In rejecting the claim the court quoted the following relevant explanation of the plea bargaining process from Bordenkircher v Hayes 434 U 357 363 1978 S 364 To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort and far an agent of the State to pursue a course of action whose objective is to penalize a person reliance on his legal rights is patently s unconstitutional But in the give of plea bargaining there take and is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor offer s While confronting a defendant with the risk of more severe punishment clearly may have a effect on the discouraging s defendant assertion of his trial rights the imposition of these difficult choices is an inevitable and permissible attribute of any legitimate system which tolerates and encourages the negotiation of pleas It follows that by tolerating and encouraging the negotiation of pleas this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor interest at the s bargaining table is to persuade the defendant to forgo his right to plead not guilty Citations omitted Fortino 837 So 2d at 691 692 The record establishes that the defendant voluntarily and with assistance of counsel accepted a plea agreement to avoid the possibility of a harsher sentence if convicted at trial The defendant had every right to reject the plea agreement and face the risk of a harsher result and chose not to do so Her choice appears reasoned when one considers that the defendant sown version of the plea bargain process in which she claims that the trial court told her attorney that she either take the 30 years or she goes to trial and I will sentence her to 49 years assumes that she would be found guilty at trial of the charged offense of committing an armed robbery The record reflects that the defendant has never claimed actual innocence but only objects to the length of her sentence It is well that settled dissatisfaction with a sentence is not a basis for withdrawing a guilty plea State v 9 Boatright 406 So 2d 163 165 La 1981 State v Cook 591 So 2d 1248 1252 La App 5 Cir 1991 We find the pleas were knowingly and intelligently entered that they were not forced or coerced and were within constitutional dimensions A plea agreement as offered to the defendant it was accepted and the terms were kept The pleas were not rendered involuntary because of the communication to the defendant of the risk that she could receive a longer sentence if she proceeded to trial and was convicted Considering the record as a whole the trial court neither abused nor arbitrarily exercised its discretion in denying the motion to withdraw the defendant s guilty pleas The defendanYs first two assignments of errors are without merit Assignment of Error No 3 Assistance of Counsel The defendant sfinal assignment of error asserts that her trial counsel was ineffective for failing to 1 conduct further discovery regarding her involvement in the crimes 2 file pre motions 3 protect the defendant rights in trial s connection with the plea agreement 4 interview any potential witnesses or any of the co 5 prepare a defense far the defendant or 6 defendants probable speak to her about any defenses A claim of ineffectiveness of counsel is generally relegated to post conviction proceedings State v Calhoun 96 La 5 694 So 2d 909 0786 97 20 914 However where the claim is raised as an assignment of error on direct review and where the record on appeal is adequate to resolve the matter the claims should be addressed in the interest ofjudicial economy Calhoun 694 So 2d at 914 The part two test of Strickland v Washington 466 U 668 1984 applies to S challenges of guilty pleas based on claims of ineffective assistance of counsel State v West 09 La 12 50 So 3d 148 149 2810 10 Zo To establish that her trial attorney was ineffective the defendant must establish 1 that counsel s performance fell below an objective standard of reasonableness under prevailing professional norms and 2 that counsel inadequate performance prejudiced the s defendant to the extent that the proceedings were rendered unfair and the convictions suspect West 50 So 3d at 149 To satisfy the prejudice requirement the defendant must show that there is a reasonable probabiliry that but for counsel enors she would not have pled guilty and would have insisted on s going to trial State v Washington 491 So 2d 1337 1339 La 1986 quoting Hill v Lockhart 474 U 52 1985 S The record does not support the defendant claims that her trial counsel s s performance was unreasonable or inadequate Defense counsel filed numerous motions relative to the charges pending against the defendant including a motion for preliminary examination an omnibus motion and order that included an application for bill of particulars motion for production of documents and tangible objections motion for pre discovery motion for preliminary examination trial motion to suppress evidence and motion to suppress exculpatory statements The State produced open file discovery to the defendant The defendant smotions were set for hearing several times before finally being continued until the trial date and then withdrawn at the time the plea agreement was entered Defense counsel also retained the services of a psychiatrist who performed an independent psychiatric evaluation of the defendant for use in connection with the plea negotiations Before being sentenced the trial court asked the defendant if she was satisfied with her s lawyer work and she responded Yes I am She acknowledged that her attorney had explained her rights to her Defense counsel also confirmed on the recard that he was satisfied that the defendant knowingly intelligently voluntarily and willfully wants to plead guilty He pointed out that ii the psychiatrist repork contained nothing that would affect the defendant ability s s to either understand the procee or to enter a knowing free and voluntary ings plea The defendant was charged th crime that carried maximuni sertences of nine ninety years rn robb anc tk ears tproduction or mar of ed y iz ufacture marijuana Unless the charg c s base on Lhe same aci or t d ffenses l ansaction or constitute part of a scheme or plan sentences for convictions for multiple offenses shall be served consecutively unless the court expressly directs that some or all of them be served concurrently La Code Crim Pro art 883 No facts suggest that the armed robbery and the production or manufacture of marijuana were based upon the same act or transaction Therefore but for the plea bargain negotiated for and agreed to by the defendant she was exposed to the possibility of lengthy consecutive sentences if convicted Having received concurrent sentences totaling thirty years for crimes which carried possible sentences of one hundred and twenty yeaa if imposed nine consecutively the benefit of the plea bargain to the defendant is apparent We cannot say that trial counsel actions or inactians rendered the plea bargain s constitutionally infirm Nor can we say that but for trial counsel representation s the defendant faced with the risk of a guilty vexdict and the possibility of Iengthy consecutive sentences would have maintained her not guilty plea and gone to trial The defendant also argues that her trial counsel failed to interview any potential witnesses or any of the co and he did not prepare a defendarits probable defense for the defendant or speak to tier about any defenses She does not say what the witnesses would have said and does not say what her probable defense should hav been Nevertheless decisions relating to invest preparation e rgatien and strategy annot possibly be reviewed n c appeal Only in an evidentiary hearing i the district court where the defendant could present evidence beyond n 12 what is contained in the instant record could these allegations be sufficiently investigated gly AcGOrdix the third assignmeni of error urging ineffective assistance of counsel is without rnerit s otkier n ubject to appellate review r vise t See State v Albert 9 La App 1 Cir 6120l 1 199 764 So 2d 1355 1363 64 State v Alartin 607 So 2d 788 La App ist Cit i992 775 EXCESSIVE SF iTEIVCE Lastly the defendant argues her sentences must be reviewed for excessiveness However a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea cannot be appealed or reviewed La Code Crim Pro art 881 2State v Young 96 La 10 b So 2A 0195 96 15 0 2d 1171 1175 Having been sentenced in accordance with a plea agreement the defendant is procedurally barred from appealing her sentences CONVICTIONS AND SENTENCES AFFIRMED Z The defendant would have to satisfy the requirements of Louisiana Code of Criminal Procedure article 924 et seq in order to receive such a hearing 13
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